United States v. Hedgecock ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HITESMAN, and GASTON
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Damon X. HEDGECOCK
Intelligence Specialist First Class (E-6), U.S. Navy
Appellant
No. 201800333
Argued: 5 May 2020—Decided: 29 May 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Shane E. Johnson
Sentence adjudged 19 June 2018 by a general court-martial convened
at Joint Base Pearl Harbor—Hickam, Hawaii, consisting of officer
members. Sentence approved by the convening authority: reduction to
pay grade E-1, confinement for ten years, and a dishonorable dis-
charge.
For Appellant:
Lieutenant Gregory Hargis, JAGC, USN
For Appellee:
Major Clayton L. Wiggins, USMC (argued)
Lieutenant Commander Timothy C. Ceder, JAGC, USN (on brief)
Lieutenant Joshua C. Fiveson, JAGC, USN (on brief)
Chief Judge CRISFIELD delivered the opinion of the Court, in which
Senior Judges HITESMAN and GASTON joined.
29 May 2020: Admin. correction to counsel name & footnote 10 errata.
United States v. Hedgecock, NMCCA No. 201800333
Opinion of the Court
_________________________
PUBLISHED OPINION OF THE COURT
_________________________
CRISFIELD, Chief Judge:
Contrary to his pleas, Appellant was convicted of one specification of
maiming and one specification of obstruction of justice, in violation of Articles
124 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 924 and
934 (2012). 1 Appellant now raises four assignments of error [AOEs]: (1) the
military judge abused his discretion by denying Appellant’s motion to compel
the Government to appoint a neuropsychologist as an expert consultant to
assist the Defense team; (2) the military judge abused his discretion by
denying Appellant’s request for a continuance prior to trial; (3) the military
judge committed plain error by allowing the Government to introduce
evidence that Appellant offered to pay for J.A.W.’s medical expenses; and
(4) the evidence is legally and factually insufficient to sustain Appellant’s
conviction for maiming. 2 We find merit in AOE (3), but find that any error
resulted in no prejudice to Appellant. We therefore affirm the convictions and
sentence.
I. BACKGROUND
Appellant, a married man, started a casual sexual relationship with
J.A.W., a man he met on-line. At first, Appellant hid the fact that he was
married from J.A.W., but J.A.W. eventually found out. As J.A.W. became
more serious about the relationship he pressured Appellant to leave his wife.
Appellant sought to appease J.A.W. by weaving an elaborate lie about his
deteriorating relationship with his wife, who at this point was unaware of her
husband’s homosexual love affair. Appellant’s lies to J.A.W. included forged
1 Appellant was also convicted of aggravated assault, as a lesser included offense
of attempted murder, but the military judge found that offense was part of a single
course of conduct with the maiming offense and conditionally dismissed it.
2 AOE (4) is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). Having carefully considered that assignment of error, we find it to be without
merit. See United States v. Clifton, 35 M.J. 79 (C.M.A. 1992); United States v. Matias,
25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988).
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Opinion of the Court
police reports and divorce documents, all designed to convince J.A.W. that
Appellant and he would soon be able to start an exclusive life together.
Appellant and J.A.W.’s relationship culminated in Appellant paying for
J.A.W. to fly to Hawaii, where Appellant was stationed, ostensibly so they
could start a life together as a couple with Appellant’s children. The glitch in
Appellant’s plan was that his wife, children, and mother-in-law were still
residing in his house and he had made no arrangements whatsoever for
accommodations for J.A.W., who thought he was going to live in Appellant’s
house. J.A.W.’s introduction to Hawaii consisted of Appellant driving him
around the island for 12 hours while Appellant was trying to figure out what
to do next. J.A.W., who had flown from the East Coast to Hawaii, grew
increasingly upset as time went by. He demanded to either be taken to
Appellant’s home so he could meet Appellant’s children, shower, and rest, or
to the airport, so he could leave Hawaii. Appellant first took J.A.W. back to
the airport, where they had a heated argument in which J.A.W. threatened to
call Appellant’s mother and command to inform them about their relation-
ship. Appellant then agreed to take J.A.W. to his house.
When they arrived in the driveway of Appellant’s house, Appellant en-
tered the house while J.A.W. waited in the car. Appellant soon came outside,
opened the garage door, moved J.A.W.’s luggage into the garage, and closed
the garage door. Appellant and J.A.W. stayed in the garage for some time,
holding each other, when J.A.W. said he wanted to enter the house, picked up
his luggage, and turned toward the door to go in. Appellant picked up a
hammer which was lying on the floor under a pair of gym shorts and repeat-
edly struck J.A.W. on the head with it, fracturing his skull in several places,
causing multiple lacerations to his scalp and face, and injuring his hand
where he attempted to defend himself against the attack.
J.A.W. fell to the ground under the weight of the blows and pleaded with
Appellant to stop hitting him. Appellant ceased the attack and helped J.A.W.,
who maintained consciousness, to staunch the bleeding. Appellant took
J.A.W. to the hospital in his car and they agreed that they would tell authori-
ties that J.A.W. was attacked by a stranger. When questioned by police,
Appellant told them that J.A.W. had been attacked by a homeless man.
Appellant managed to convince J.A.W. that he had blacked-out during the
assault and did not know why he had done it. He stated that he wanted to
stay in a relationship with J.A.W. J.A.W. also wished to maintain the
relationship. That changed about a week later when he learned that Appel-
lant was not divorced from his wife and his wife had actually been inside the
house when J.A.W. was attacked in the garage. J.A.W. then went to police
and told them what had happened.
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Opinion of the Court
Appellant was interviewed by Special Agents of the Naval Criminal In-
vestigative Service [NCIS]. He denied any intent to kill J.A.W. and initially
claimed that he did not remember hitting him with the hammer. Over the
course of the interview, however, Appellant admitted repeatedly striking
J.A.W. in the head with a hammer and provided a detailed description and
reenactment of the assault.
Appellant was charged with attempted murder, maiming, and obstruction
of justice. Prior to trial, Appellant moved to compel the Government to
provide two named expert assistants: a forensic psychologist, Doctor A, and a
neuropsychologist, Doctor B. According to Appellant, the assistance of a
neuropsychologist was necessary to review the “possibility that [Appellant’s]
actions were the result of a neuropsychological phenomenon.” 3 Appellant
maintained the assistance of a forensic psychologist was necessary to
determine if “psychological phenomenon, such as Post Traumatic Stress
Disorder [PTSD] . . . and flashbacks interfered with [Appellant’s] ability to
process reality at the time of the offense.” 4 The focus of both experts’ assis-
tance would be on Appellant’s capability to form specific intent to kill or
injure at the time of the assault. 5
Doctor B testified on the motion regarding the role of a neuropsychologist,
but he had not reviewed any evidence in the case, had no knowledge of
whether Appellant suffered from a neuropsychological injury, and stated that
his opinion that Appellant might have neuropsychological issues was “purely
speculative.” The military judge noted that the Defense had provided
evidence of psychological trauma, but no evidence of neurological injury to
support the motion. He delayed his ruling to give the Defense 48 hours to
provide further evidence. The Defense subsequently submitted a letter from
Doctor B, in which he stated that he had reviewed Appellant’s neuropsycho-
logical screening results and believed that there were areas that needed to be
explored further.
The military judge also reviewed the report from Appellant’s Rule for
Court-Martial [R.C.M.] 706 mental health evaluation. The psychologist who
conducted that evaluation noted that Appellant had likely experienced a
traumatic event in his past and noted that a “diagnostic consideration” was
3 Appellate Ex. VIII at 8.
4 Id. at 6.
5 Id. at 6, 10.
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Opinion of the Court
“Conversion Disorder.” 6 The evaluator diagnosed Appellant with “Adjustment
Disorder with Mixed Disturbance of Emotions and Conduct.” 7 He also
determined that Appellant did not suffer from a severe mental disease or
defect and did not have a “severe, organic pathology.” 8
The military judge granted Appellant’s motion to compel production of a
forensic psychologist, but allowed the Government to find an adequate
substitute for Doctor A, which the Government did. The military judge denied
Appellant’s motion to compel production of a neuropsychologist, finding that
the Defense presented no evidence that Appellant suffered any illness or
injury to his neurological system or brain. 9
A little more than two weeks before trial was scheduled to start, Appel-
lant informed the military judge that he had received third-party funding to
hire Doctor A and Doctor B to assist the Defense. He informed the military
judge that he would move for a continuance to procure their services. Five
days later Appellant filed a written motion for a continuance. He stated that
the contracting process to secure the funding would take about 30 days.
The continuance motion was litigated ten days before trial was scheduled
to start. The military judge noted that Appellant had provided no evidence to
support his motion. He also noted that the Defense had already been provid-
ed an adequate substitute for Doctor A, and that he had prior ruled that the
assistance of Doctor B was not necessary. The military judge denied the
continuance motion but invited Appellant to make a supplemental filing if he
had evidence to present. Appellant did not provide anything further on the
motion.
II. DISCUSSION
A. The Military Judge Did Not Abuse His Discretion by Denying
Appellant’s Motion to Compel the Appointment of a Neuropsycholo-
gist As an Expert Consultant
Appellant asserts that the military judge abused his discretion when he
denied Appellant’s request to compel the Government to provide a neuropsy-
6 Appellate Ex. XX at 8.
7 Id. at 10.
8 Id. at 11.
9 Appellate Ex. XXIV.
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Opinion of the Court
chologist as an expert consultant to the Defense team. We review a military
judge’s denial of a request for expert assistance for an abuse of discretion.
United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005). A military
judge abuses his discretion if (1) his findings of fact are not supported by the
evidence, (2) he uses incorrect legal principles, or (3) his application of the
correct legal principle to the facts is clearly unreasonable. United States v.
Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010). “The abuse of discretion standard is a
strict one, calling for more than a mere difference in opinion. The challenged
action must be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly errone-
ous.’ ” United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (quoting
United States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)).
On a motion to compel the production of expert assistance, “the accused
has the burden of establishing that a reasonable probability exists that (1) an
expert would be of assistance to the defense and (2) that denial of expert
assistance would result in a fundamentally unfair trial.” United States v.
Freeman, 65 M.J. 451, 458 (C.A.A.F. 2008) (citation omitted). As described in
United States v. Anderson, 68 M.J. 378, 383 (C.A.A.F. 2010) and United
States v. Gonzalez, 39 M.J. 459, 461 (C.M.A. 1994), in order to demonstrate
that the expert would be of assistance to the Defense, the moving party must
show (1) why expert assistance is necessary; (2) what the expert would
accomplish for the Defense; and (3) why defense counsel is unable to gather
and present evidence that the expert would be able to develop.
We find that the military judge did not abuse his discretion in denying
Appellant’s request for the assistance of a neuropsychologist by finding that
neither the first nor second prongs of the Gonzalez test were met. Specifically,
the military judge determined that the Defense failed to present any evidence
that the Accused suffered from any form of brain dysfunction or neurological
condition warranting further evaluation. He also determined that the
Defense failed to present any evidence that the sexual abuse Appellant
suffered as a child impacted his brain development or that he ever suffered
from PTSD. 10
10 During appellate review Appellant moved to attach a document purporting to
be a post-trial mental assessment of Appellant which included a diagnosis of post-
traumatic stress disorder. As this evidence was not provided to the military judge on
the pretrial motion to compel, we denied Appellant’s motion to attach. Notwithstand-
ing our decision, Appellant’s brief includes an appendix containing the document and
his brief includes references to the document. Appellee’s answer brief also includes a
discussion of the document. This document is not part of the record of trial. Art. 66(c),
UCMJ, 10 U.S.C. § 866(c) (2012). We have not considered the document nor the
6
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Opinion of the Court
The military judge noted that Doctor B stated he had no knowledge of
whether Appellant had a neuropsychological deficiency or whether Appel-
lant’s brain was functioning normally. Doctor B’s opinion that further testing
of Appellant was warranted was based on a neuropsychological screening test
that the Defense declined to produce for the motion. According to Doctor B,
that screening test indicated that Appellant had a weakness in neurological
function, but that his function was still within a normal range. Thus, Doctor
B’s opinion that Appellant might have neuropsychological issues was, as he
himself stated, “purely speculative.”
Two other facts are relevant to our conclusion. First, the R.C.M. 706 ex-
aminer found that Appellant did not have a severe mental disease or defect at
the time of the offense, which reinforced the military judge’s finding that
there was no evidence that Appellant suffered from a neurological deficiency.
Hence, there was nothing clearly erroneous about the military judge’s finding
that Appellant failed to present sufficient evidence that he suffered from a
neuropsychological deficiency.
Second, the military judge approved the Defense’s motion to compel the
Government to provide assistance from a forensic psychologist, which the
Government did. This expert was in a position to assist the Defense in
perfecting its argument for the necessity of specialized assistance from a
neuropsychologist. Nonetheless, the Defense never re-approached the
military judge or sought to fill the gaps the military judge identified with
respect to its request for assistance from a neuropsychologist. See generally,
United States v. Gunkle, 55 M.J. 26 (C.A.A.F. 2001) (failure to renew a
request for an expert witness may serve to waive the issue).
The military judge’s findings of fact were supported by the evidence; he
used correct legal principles; and his application of the legal principles to the
facts was reasonable. Ellis, 68 M.J. at 344.
Assuming arguendo that there was error in the denial, we find no preju-
dice. The test for prejudice due to a military judge’s abuse of discretion is
whether the error materially prejudiced an appellant’s substantial rights.
United States v. Lee, 64 M.J. 213, 218 (C.A.A.F. 2006) (citing Article 59(a),
UCMJ). Where denial of an expert deprives an appellant of the right to
present a defense to the “linchpin of the prosecution case,” the error takes on
related discussion in the parties’ briefs in reaching our decision. See United States v.
Lloyd, 69 M.J. 95, 100 (C.A.A.F. 2010) (“In reviewing a military judge’s ruling for
abuse of discretion . . . we review the record material before the military judge.”).
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Opinion of the Court
a constitutional dimension and must be harmless beyond a reasonable doubt
to avoid reversal. United States v. McAllister, 64 M.J. 248, 252 (C.A.A.F.
2007).
At the time Appellant made his motion for expert assistance he was
charged with attempted murder, which requires proof of a specific intent to
kill the victim. Appellant was acquitted of attempted murder, however. He
was convicted of the specific-intent offense of maiming, which requires only
the specific intent to injure. However unlikely, we assume for the sake of
argument that Appellant’s requested neuropsychologist could have rendered
an opinion that Appellant could not, or did not, form the specific intent to
injure J.A.W. at the time of the assault, which would inure to Appellant’s
benefit on the merits in this case.
Even had a neuropsychologist rendered such an opinion, in light of the
evidence adduced at trial regarding Appellant intentionally and repeatedly
striking J.A.W. in the head with a hammer, we find beyond a reasonable
doubt that the members would still have found Appellant had the specific
intent to injure J.A.W. See McAllister, 64 M.J. at 248. The Government case
on the maiming offense was extremely strong, and the actus reus was never
contested by the Defense. The detailed testimony of J.A.W. regarding the
circumstances of the attack, Appellant’s inculpatory statements to NCIS and
his psychotherapist, and Appellant’s own testimony at trial all strongly
support the finding that Appellant intended to injure J.A.W. 11
B. The Military Judge Did Not Abuse His Discretion by Denying
Appellant’s Continuance Request
We review a military judge’s decision to deny a continuance for abuse of
discretion. United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997). A
military judge abuses his discretion when his reasons for denial are “clearly
untenable and . . . deprive a party of a substantial right such as to amount to
a denial of justice.” Id. at 358.
In Miller, the Court of Appeals for the Armed Forces [CAAF] articulated
twelve factors relevant to a military judge’s consideration of a continuance
request. Those factors include:
11 At trial, Appellant testified that he repeatedly hit J.A.W.’s head with a ham-
mer in order to protect his family from J.A.W. Given the method he chose, the only
way the hammer was going to accomplish that goal was if it injured J.A.W.
8
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Opinion of the Court
surprise, nature of any evidence involved, timeliness of the re-
quest, substitute testimony or evidence, availability of witness
or evidence requested, length of continuance, prejudice to op-
ponent, moving party received prior continuances, good faith of
moving party, use of reasonable diligence by moving party, pos-
sible impact on verdict, and prior notice.
Id., (quoting Francis A. Gilligan & Fredric I. Lederer, Court-Martial Proce-
dure § 18-32.00, 704 (1991)). These factors overwhelmingly weigh in favor of
our conclusion that the military judge did not abuse his discretion in denying
Appellant’s continuance request.
The Defense presented no evidence in support of its continuance request.
This obviously frustrated the military judge, who refused to accept eviden-
tiary proffers from the Defense. Furthermore, the Defense could not explain
(a) why the substitute forensic psychologist provided by the Government was
inadequate for the Defense, or (b) why the assistance of a neuropsychologist
necessitated postponing the trial when the military judge had ruled earlier
that the Defense had not demonstrated the necessity of such an expert. These
were two obvious questions that the Defense should have anticipated and
been prepared to address, but they did not. The military judge offered the
Defense the opportunity to submit a supplemental filing containing evidence
to support its request, but the Defense did not take advantage of the oppor-
tunity. This particular Miller factor weighs heavily against the Defense and
is sufficient alone for us to conclude that the military judge did not abuse his
discretion.
The other Miller factors only reinforce that conclusion. The Defense could
not state a date certain when it would be ready to proceed to trial. It prof-
fered that the two experts would be available for trial in three months, but
could not state when it would actually have funds in hand to pay for the two
experts. We also find there is no reasonable probability that the addition of a
neuropsychologist and a second forensic psychologist to the Defense team
would have changed the verdict.
C. It Was Plain Error For the Military Judge to Permit the Govern-
ment to Introduce Evidence That Appellant Offered to Pay For
J.A.W.’s Medical Expenses
Appellant asserts that the military judge committed plain error by allow-
ing the Government, in violation of Military Rule of Evidence [Mil. R. Evid.]
409, to present evidence that Appellant offered to pay for J.A.W.’s medical
bills resulting from Appellant’s attack. We agree with Appellant, but find no
prejudice from the error.
9
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Opinion of the Court
In pretrial motions the Government signaled its intent to present evi-
dence that Appellant paid for J.A.W.’s medical bills resulting from the
assault. The military judge inquired: “You’re showing consciousness of guilt
where he’s paying for his medical bills?” The trial counsel answered, “Yes,
sir.” 12
The Defense made no motion in limine to exclude such evidence, but chose
instead to incorporate the evidence in its theory of the case that J.A.W. was a
“Craigslist conman” 13 who was scheming to wring every dollar he could out of
the Appellant. The first time the members heard anything about Appellant
paying for J.A.W.’s medical bills was from the defense counsel in his opening
statement:
Because [J.A.W.] wasn’t leaving this island until he had that
con secured. It worked. He went back to the mainland, and
Damon Hedgecock sent him money every month, agreeing to
pay his medical bills, sending him reassurances of every type;
because as long as that money kept flowing, [J.A.W.] didn’t
have any complaints. That’s what he does. That’s what he’s
good at. 14
The first evidence introduced about Appellant paying for J.A.W.’s medical
bills was from the Government. In its case-in-chief, the Government intro-
duced a videotape of Appellant’s interrogation by NCIS. In the course of the
interrogation, Appellant described an agreement he had with J.A.W.:
I’m covering his medical bills. I’m giving him some additional
money to cover for wages lost because he lost his part-time
serving position when he came out of here, and that I will be
handling his medical expenses, if he has any additional bills
that are incurred as a result of my actions. 15
Three separate times in the course of the interrogation, Appellant men-
tioned that he agreed to pay for J.A.W.’s medical bills and acknowledged that
he was responsible for those bills. 16 Once again, the Government stated they
were introducing evidence about Appellant paying for J.A.W.’s medical bills
12 Record at 155.
13 Record at 607, 610, 924, 1285.
14 Id. at 611.
15 Prosecution Ex. 1 at 12.
16 Id. at 12-13, 15.
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as consciousness of guilt. There was no objection from the Defense to this
evidence.
During J.A.W.’s testimony during the Government’s case-in-chief, the
trial counsel asked him: “Did he offer to pay for your medical expenses?”
J.A.W. replied: “He did, medical expenses, as well as plastic surgery if I need
it.” 17 Again, the Government’s stated intention for introducing this evidence
was to prove Appellant’s consciousness of guilt.
There was no objection to this evidence from the Defense, which asked
multiple questions about Appellant’s payments of the medical expenses
during its cross-examination of J.A.W.:
Q. And you start a discussion with Damon about the
medical bills; correct?
A. Yeah. We did have discussions about that.
Q. And that was like an ongoing conversation.
A. Oh, absolutely. 18
Later in the cross-examination:
Q. And you were looking for assurances that he would
pay these medical bills?
A. Yes, sir, that he agreed to pay.
Q. And he agreed to pay those medical bills; right?
A. [Affirmative response.]
....
Q. He was convinced he would lose his kids if he didn’t
pay you for the medical bills. Is that true?
A. I don’t know that. 19
17 Record at 843.
18 Record at 909.
19 Id. at 915-916. During an Article 39(a) session in the course of J.A.W.’s testi-
mony, the defense counsel explained to the military judge his reason for asking these
questions: “And it is our argument that [Appellant] only did those things [paying for
J.A.W.’s medical expenses and hotel bills] because he was being exploited, because he
was being controlled.” Id. at 932. The military judge then asked the trial counsel: “So,
government, why did you put in evidence that—I mean, what was the purpose of the
11
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During the Defense’s case-in-chief, Appellant testified on direct examina-
tion about his offer to pay J.A.W.’s medical expenses:
Q. Okay. Was there any discussion of money at that
time?
A. He made mention of his thousands of dollars in
medical bills he would have from it all. I said I was re-
sponsible for it and that I would take care of it.
Q. Was he satisfied with just your word about that?
A. No, sir.
Q. So what happened in regards to the money?
A. I made multiple efforts to get copies of the billing
information and he would not provide it, citing that it
either had to go through a third-party legal or that he
would want me to make payments directly to him and
then he would pay the medical bills.
Q. First off, did you agree to pay the medical bills?
A. Yes, sir.
Q. How did you agree to that?
A. Verbally, text, and I’d also typed up a paper document
and got it notarized citing that I would cover all medi-
cal expenses.
Q. Did you have any problem with paying the medical
bills?
A. It would have been difficult, but, no, sir. I caused the
injuries. I would be responsible for them. I would cov-
er them.
Q. And how did he want to have payment?
A. He wanted me to pay him directly then he said he
would pay the bills from there.
Q. And how did you want to make payments?
A. Directly to the medical billers.
evidence of paying for the medical bills, paying for the hotel?” The assistant trial
counsel responded: “Consciousness of guilt.” Id. at 932-33.
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Opinion of the Court
Q. Why?
A. That way I knew for a fact that I was paying the
medical bills. 20
Neither party mentioned the evidence of Appellant offering to pay
J.A.W.’s medical bills during their closing arguments.
Mil. R. Evid. 409, entitled “Offers to pay medical and similar expenses,”
states unequivocally: “Evidence of furnishing, promising to pay, or offering to
pay medical, hospital, or similar expenses resulting from an injury is not
admissible to prove liability for the injury.” While the rule appears unambig-
uous on its face, the Manual for Courts-Martial’s analysis of the rule surpris-
ingly casts doubt on its applicability to courts-martial: “Unlike Rules 407 and
408 which although primarily applicable to civil cases are clearly applicable
to criminal cases, it is arguable that Rule 409 may not apply to criminal cases
as it deals only with questions of ‘liability’—normally only a civil matter.”
Manual for Courts-Martial [MCM], United States, Analysis of Military Rules
of Evidence app. 22 at A22-40 (2016 ed.).
We therefore address three issues: (1) Does Mil. R. Evid. 409 apply to
courts-martial?; if so, (2) did the Government violate the rule by presenting
evidence of Appellant’s agreement to pay J.A.W.’s medical bills to prove
consciousness of guilt?; and, if so, (3) in the absence of objection from the
Defense, did the military judge commit plain error by allowing the Govern-
ment to present that evidence?
Addressing first the applicability of the rule to courts-martial, although
we have discovered no military justice case in which Mil. R. Evid. 409 has
been interpreted directly, the Court of Military Appeals mentioned the rule in
somewhat ambiguous dicta in United States v. Nickels, 20 M.J. 225 (C.M.A.
1985). The appellant in Nickels was the custodian of a postal fund that was
found to be $3,000 short. Charged with dereliction in the loss, the appellant
testified that he personally paid for the shortfall in the fund, not because he
was guilty of causing the shortfall, but because he felt responsible for the
fund. In a per curiam opinion, that court implied that under different factual
circumstances, Mil. R. Evid. 409 would have been in issue: “If the Govern-
ment, over defense objection, had sought to introduce the evidence of appel-
lant’s payment of the $3,000 to show a consciousness of guilt on his part, an
20 Id. at 1082-1084. See also id. at 1037-1038 (“I would take responsibility for
what I had done and financial responsibility for the medical costs I had forced him to
incur.”).
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Opinion of the Court
interesting evidentiary question might have been presented. Cf. Mil. R. Evid.
407-09.” Nickels, 20 M.J. at 226 (emphasis added).
While we cannot state with certainty what the Nickels court meant by an
“interesting evidentiary question,” we do not think it meant that the interest-
ing question would be whether Mil. R. Evid. 409 applied to the military
justice system, but how it applied to that particular case. 21 At the time, Mil.
R. Evid. 409 was substantially similar to its current version and the rule’s
analysis in the 1984 Manual was identical to its current version. Hence, we
interpret this dicta as some indication from our superior court that not only
does the rule indeed apply to courts-martial but that its proscription would be
placed in issue by the Government’s use of such evidence of remuneration to
show consciousness of guilt.
The Government argues that the fact that the rule has not been substan-
tively addressed by military courts bars a finding of plain error:
No military court has articulated the scope of Mil. R. Evid. 409
and Appellant points to no case law in his Brief interpreting
the Rule. Accordingly, under [United States v. Gonzalez, 78
M.J. 480 (C.A.A.F. 2019)] the Military Judge could not commit
plain and obvious error where he had no authority to compel
his decision. 22
We disagree with Appellee’s interpretation of Gonzalez and the notion
that the plain language of a military rule of evidence is insufficient authority,
per se, to support a finding of plain error. Gonzalez was not a case where
courts had not interpreted an issue. To the contrary, it was the fact that
courts had reached different interpretations on the relevant issue that made
it impossible for CAAF to find that the lower court’s error was plain and
obvious. Here, we have no case law offering conflicting interpretations of the
rule at issue; in fact, we have found no binding or even persuasive case law.
What we do have is a military rule of evidence with a plain and obvious
meaning on its face. We find that such an unambiguous military rule of
evidence, even if not elucidated by case law, can constitute a positive rule of
law, the transgression of which can constitute a plain and obvious error.
21 The quote is a good example of why the Bluebook strongly recommends that
parenthetical explanations accompany “Cf.” signals. The Bluebook: A Uniform System
of Citation R. 1.2, at 59 (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).
22 Appellee’s Answer at 35.
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United States v. Hedgecock, NMCCA No. 201800333
Opinion of the Court
The statement in the drafter’s analysis of Mil. R. Evid. 409 that “liability”
is “normally only a civil matter” is a curious statement since the concept of
criminal liability is replete in the M.C.M. For example, the exceptions to the
hearsay rule contained under Mil. R. Evid. 804 mention “criminal liability”
twice; the Manual’s explanation of Article 77, UCMJ, on principals, speaks of
those who might be “liable for an offense” and discusses how to “avoid
liability” for an offense by withdrawing from a common venture; the explana-
tion for Article 81, UCMJ, describing the crime of conspiracy, talks about
each conspirator’s “liability for offenses”; the explanation for Art. 112a,
UCMJ, on controlled substances, mentions that an accused who is deliberate-
ly ignorant of the contraband nature of a controlled substance will be “subject
to the same criminal liability as one who has actual knowledge.” We can see
no reason why the mere use of the word “liability” in Mil. R. Evid. 409 would
render it inapplicable to courts-martial. Thus, we conclude that, notwith-
standing the analysis’ warning, it is inarguable that this rule, like every
other rule contained in the Military Rules of Evidence, does indeed apply to
courts-martial.
Having concluded that Mil. R. Evid. 409 applies to courts-martial, we next
determine if the Government violated the rule. The Government repeatedly
stated to the military judge that it was introducing the evidence to show
consciousness of guilt. The Government now asserts that consciousness of
guilt is different than liability as contemplated by Mil. R. Evid. 409, essen-
tially arguing that liability is related only to the actus reus, while conscious-
ness of guilt is related to mens rea. We disagree with such a narrow construc-
tion of “liability,” which is in fact a much broader legal concept. According to
Black’s Law Dictionary, “liability” means “The quality, state, or condition of
being legally obligated or accountable; legal responsibility to another or to
society, enforceable by civil remedy or criminal punishment . . . .” Liability,
Black’s Law Dictionary (10th ed. 2014). As this broader definition of “liabil-
ity” as meaning legal accountability or responsibility is generally consistent
with the way the term is used elsewhere in the M.C.M., discussed above, we
adopt this definition of “liability” for purposes of that term’s use in Mil. R.
Evid. 409, encompassing both the actus reus and mens rea. We therefore
conclude that “evidence of furnishing, promising to pay, or offering to pay
medical, hospital, or similar expenses resulting from an injury,” if admitted
to prove “consciousness of guilt,” falls within the proscription of the rule.
Since the Government used the evidence at issue here for precisely that
reason, it did so in violation of Mil. R. Evid. 409.
Having determined that the Government violated Mil. R. Evid. 409, we
next need to determine if the military judge committed plain error by
allowing the Government to present the evidence in the absence of Defense
objection. Under plain error review, Appellant has the burden of demonstrat-
15
United States v. Hedgecock, NMCCA No. 201800333
Opinion of the Court
ing that: “(1) there was error, (2) the error was [clear] and obvious, and (3)
the error materially prejudiced a substantial right of the accused.” United
States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018) (citation omitted). In this
regard, we first find that allowing the Government to introduce the evidence
in violation of the rule was error.
The obvious complicating factor in determining whether the error was
clear and obvious is, as discussed above, that the rule’s formal analysis in the
M.C.M. explicitly questions whether the rule even applies to courts-martial.
As the CAAF stated in Gonzalez, “an error in the MCM is a factor in deter-
mining whether an issue is subject to reasonable doubt” and therefore not
clear and obvious (i.e., plain error). Gonzalez, 78 M.J. at 486-487 (italics in
original). However, as also discussed above, this is not a case where different
courts have interpreted Mil. R. Evid. 409 differently or where our superior
court has issued an ambiguous interpretation, which would make it very
difficult to hold that a trial judge’s interpretational error was clear and
obvious. To the extent our superior court has addressed the rule at all, in
Nickels, it did so not only in repudiation of the drafter’s analysis as to its
applicability to courts-martial per se, but also with the strong implication
that it specifically applies, as we have now held, to evidence used to show
consciousness of guilt. Nickels, 20 M.J. at 226.
We also note that neither Mil. R. Evid. 409 nor the accompanying analysis
in the M.C.M. was ever referenced by any of the participants in the court-
martial. No limiting instruction was requested or provided to the members to
instruct them that they could not use the evidence to establish liability. It is
therefore unlikely that the military judge, or the counsel, were misled by the
faulty analysis since they did not consider the rule. Thus, we find the
drafter’s analysis, in providing a warning that is both unreasonable and
unsupported by case precedent, and in any event was not relied on by the
parties, should be given no weight at all, and we will not let it stand in the
way of finding that the error was clear and obvious.
Appellee asserts that Appellant invited the Government’s error by being
the first to introduce the members to the issue of Appellant paying for
J.A.W.’s medical bills. We disagree that invited error is applicable here
because a party is permitted to introduce evidence of an offer to pay medical
expenses as long as the evidence is not introduced “to prove liability for the
injury.” Mil. R. Evid. 409. The Defense’s purpose in introducing the evidence
was to show that J.A.W. was a “Craigslist conman” who was scheming to
enrich himself at Appellant’s expense. That the Defense theory strains
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United States v. Hedgecock, NMCCA No. 201800333
Opinion of the Court
credulity does not mean that the evidence was inadmissible. The Defense did
not violate Mil. R. Evid. 409 in admitting the evidence; the Government did. 23
Having found plain error, we must next test the error for prejudice. Art.
59, UCMJ. As discussed above, the Government case for maiming was
extremely strong. Given the fact that the Defense incorporated and used the
evidence in support of its own theory of the case, coupled with the fact that
the Government did not argue the importance of the evidence to the mem-
bers, the impact of the Government’s admission of the evidence is slight. The
cause of J.A.W.’s injuries was never in issue and Appellant repeatedly
referred to the fact that he was responsible for J.A.W.’s injuries. The Defense
goal at trial was obviously to avoid a conviction for attempted murder. They
succeeded in that goal, but never seriously contested the lesser included
offense of aggravated assault. Under these circumstances there is no doubt
that Appellant was not prejudiced by the Government’s introduction of this
evidence for purposes of showing liability.
D. The Promulgating Order Omits Required Information
We note that the convening authority’s action fails to reflect that Appel-
lant was arraigned on a charge and two specifications which were subse-
quently withdrawn before Appellant entered pleas. R.C.M. 1114(c)(1) states
that “[t]he order promulgating the initial action shall set forth: . . . the
charges and specifications, or a summary thereof, on which the accused was
arraigned . . . .” We find no prejudice to Appellant in this error, but he is
entitled to accurate post-trial documents. United States v. Crumpley, 49 M.J.
538, 539 (N-M. Ct. Crim. App. 1998). We order correction to the promulgating
order in our decretal paragraph.
E. Moreno III
We note that this decision is issued 14 days after the Moreno III date of
15 May 2020. In assessing whether the total processing time violated
Appellant’s Due Process right to speedy review of his court-martial, we
consider the four factors the CAAF identified in United States v. Moreno, 63
M.J. 129 (C.A.A.F. 2006): (1) the length of delay; (2) the reasons for the delay;
23 While we can conceive of circumstances in which the Defense first offers evi-
dence of medical-expense payments for a permissible purpose and then the Govern-
ment seeks to use such evidence only to rebut the Defense’s stated purpose, those
circumstances are not present in this case.
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United States v. Hedgecock, NMCCA No. 201800333
Opinion of the Court
(3) Appellant’s assertion of his right to a timely review; and (4) prejudice to
Appellant.
The length of the delay is small and was caused by the Court having to re-
schedule the oral argument planned for 25 March 2020 due to a health issue
with a participant in the oral argument. 24 The oral argument was held on 5
May 2020, and the Court moved quickly thereafter to render its decision.
Appellant remains in confinement, and in light of our conclusions we assess
that he has not been prejudiced by this delay. Therefore, we find no violation
of Appellant’s Due Process rights.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and find no error materially prejudicial to Appellant’s substan-
tial rights occurred. Arts. 59, 66, UCMJ. Accordingly, the findings and
sentence as approved by the convening authority are AFFIRMED. The
supplemental court-martial order will correctly indicate that Appellant was
arraigned on a second specification under Charge I that was subsequently
withdrawn, and an original Charge III and a single specification thereunder
that were also subsequently withdrawn. It will also note that the original
Charge IV was renumbered as Charge III after the original Charge III was
withdrawn.
Senior Judges HITESMAN and GASTON concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
24 The health issue was related to the ongoing coronavirus pandemic, which has
thus far impeded normal operations by this Court for several weeks and necessitated
handling the rescheduled oral argument via teleconference.
18